Debra Burlingame: Boumediene v. Bush a Strategic Victory for al Qaeda

Today’s Supreme Court decision, Boumediene v. Bush, is a huge victory for terrorists and a step backward in the war against radical Islamists. If 9/11 taught us anything, it is that the criminal justice system is not capable of preventing catastrophic terrorists attacks — nor is it designed to be. Never in the history of American jurisprudence have we given full Constitutional rights to terrorists captured anywhere in the world who commit atrocities on civilians.

The lawyers who are championing the rights of terrorists should tell the public what this decision really means. It means that terrorists will be entitled to Miranda rights, to legal representation and the right to remain silent. And they will. When Khalid Sheikh Mohammed, the mastermind of 9/11, was handed over to the U.S. after his capture in Karachi in 2003, he taunted his interrogators with this, “I’ll talk to you guys in New York when I see my lawyer.” But they won’t tell the public, they will continue to talk about preserving the rights of people who would behead journalists, blow up children and fly commercial airliners into buildings, as if those acts are an abstraction. What this decision ultimately means is that the vital intelligence we need to prevent future attacks — the kind of intelligence we didn’t have on September 10, 2001 — will dry up. We will be left reacting to these attacks after the fact — just as we did in the ten years prior to the murder of 3,000 of our fellow human beings.

Something else the lawyers won’t tell the public. Dealing with terrorists in the criminal justice system means that only the most clear-cut cases will result in convictions. Terrorists like Mohammed Atta, Hani Hanjour, Ziad Jarrah and Marwan al-Shehhi, the men who piloted those planes into the WTC, the Pentagon and the ground on 9/11 would have stood a very good chance of acquittal if they were captured in an Al Qaeda training camp in the summer of 2001. The burden of proof in the civil criminal system — beyond a reasonable doubt — is extraordinarily high. Their lawyers back then would have argued that that they have no criminal history, had committed no hostile acts against the U.S. governmnent and in fact were simply religious Muslims doing charity work on holiday, the very claims Gitmo lawyers made about Abdullah Al-Ajmi and hundreds of other detainees. Al-Ajmi was released from Guantanamo in 2005. In April, he blew himself up in Iraq, killing 7 Iraqi security forces and maiming 28 others.

Justice Scalia is right that today’s opinion will result in the death of Americans. His words remind me of the beleaguered FBI agent, Harry Sammit, who pleaded with his superiors at FBI headquarters to be allowed to launch a nationwide manhunt for Khalid al-Mihdhar and Nawaf Al-Hazmi, two of the hijackers on my brother’s plane, 3 weeks before 9/11. He was turned down by the lawyers in the National Security Law Unit of the FBI, who cited the FISA law that prevented this intelligence information from being used by the criminal division. The point of that law — known as “the wall” — was CIVIL LIBERTIES protection for the terrorists who were the object of that never-launched manhunt, should they ever be caught and brought to trial. Sammit wrote in an email, on Aug. 31, 2001:

“Someday someone will die…and the public will not understand why we were not more effective and throwing everything we had at certain problems. Let’s hope [the lawyers] will stand behind their decisions then, expecially since the biggest threat to us now, [bin laden], is getting the most protection.”

The media can call this a “defeat for the Bush administration,” but it is not. It is a defeat for the American people. And, God help us, when the next catastrophic attack occurs under the next American president’s watch, who will the media blame then? They won’t be thinking about President Bush. The families of those who are dead will be able to draw a straight, clear line right to the steps of their own U.S. Supreme Court.

First to address an earlier comment:
“I would respectfully ask, how do our troops fight a war against terrorists in which they have to mirandize prisoners, gather evidence in the midst of the fight, and leave their comrades to go testify in legal proceedings? This is insanity.”

and then there was…

“It is also wrong to expect all of our soldiers will have the same level of training as a civilian police forces regarding rules of evidence and informing detainees of their rights. It’s even possible that legitimate cases against these people who want to harm us will be dropped by prosecutors due to mishandled evidence and administrative glitches or cost avoidance measures.”

The court held that habeas would have be provided in a reasonable time and understood that the battlefield does not allow for such actions. The court simply said that the government could provide access to habeas in a reasonable time period. It does not require that soldiers mirandize people on the battlefield.

“The Geneva Convention provisions you are referring to which go beyond humane treatment apply only to uniformed soldiers of a sovereign state who observe the laws of warfare, i.e. they don’t target civilians, behead local villagers and captives or situate their RPG launchers amongst children.”

What the Supreme Court said was that you can’t leave detainees in a legal black hole forever regardless of what they did or how you captured them – you have to provide some access to habeas.

“As for some of the Gitmo detainees you mention, you’re reading the lawyers’ characterizations, fed to the media and reported without further question.”

I’m not giving you characterizations – I’m giving the actual facts of the people that were held and then, eventually released. If you doubt the facts or feel I am misrepresenting them, please feel free to look the people up – it is trivial to find information on them.

My argument isn’t for closing Gitmo – as I’ve said, I favor full prosecution of these individuals. I’m simply pointing out that by denying the detainees any reasonable form of Habeas, the courts had no choice to but to rule the way they did.

Now – to address the editor’s comments:

“You must be a member of the Guantanamo Bay Bar Association’s official propaganda wing. The enemy does not get to see America’s secrets”

No I am not. I’m an ordinary US citizen. You seem to be assuming I’m for the release of the detainees. I’m not. I’m simply stating that this could have been avoided by providing some form of due process that the courts could recognize. Holding anyone for 6 years without any finding of fact left these detainees in a legal black hole.

“The enemy does not get to see America’s secrets. Oh BTW, read the decision today; the SCOTUS agrees with me about that.”

That is correct – the SCOTUS stated that the US has a secrets that are understandably important to keep secret – they held that the court hearing the case would make the judgment of which facts could and could not be released.

From Kennedy’s brief:
“We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings.

We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence
gathering; and we expect that the District Court will use its discretion to accommodate this interest to the
greatest extent possible.”

What they are saying here is that the current system did not provide any way for detainees to access any information about the charges against them. The Supreme Court said that a judge will decide.

“They did not have “due process in the form of the Geneva Convention”; that is a canard. The convention that addressed unlawful combatants was written in 1949. All but two of them were executed in 1942, including one American citizen and five Germans.”

I’m not sure what you’re saying here – are you saying that the Germans didn’t have due process? Are you saying that Nuremberg didn’t happen? Are you saying the Geneva Convention is inconsistent in the handling of prisons or their right to trial?

As for all but one American citizen and five Germans being killed, I think you have your facts wrong – or you’re talking about something other than what I meant.

The Nuremberg trials, specifically the Trial of the Major War Criminals before the International Military Tribunal, were conducted from 1945 to 1946 and tried 24 major Nazi war criminals.

After the first set of trials, there were 12 majors trials from 1946 to 1949. From these 142 of 185 defendants were found guilty.

In principle, five unelected lawyers cannot know better than the elected Commander in Chief about the threat that we face and how to wage war.

The civilian courts are ill-prepared to handle these cases. That’s why we have a parallel system of law for the military called the UCMJ. Where are you going to find a jury of peers in the US for a Taliban fighter?

It is also wrong to expect all of our soldiers will have the same level of training as a civilian police forces regarding rules of evidence and informing detainees of their rights. It’s even possible that legitimate cases against these people who want to harm us will be dropped by prosecutors due to mishandled evidence and administrative glitches or cost avoidance measures.

Civilian court officials will now have to have the security clearances required to view the evidence. They will also have to put expensive processes and systems in place to and safeguard our national secrets. Supporters of Al Qaeda might even pay for the detainees lawyers just so that they could have a chance to review the evidence and learn about the intelligence methods our country uses to find and capture their people.

At a minimum, a new propaganda front has now been opened by our Supreme Court which will allow Al Qaeda to use our own domestic court system against us. On 9/11 we saw the terrorists use our freedom against us. They will use this as a way to get the media to attack and discredit our government.

The U.S. Supreme Court has overstepped its authority, encroaching on the executive branch’s powers and recklessly conferring Constitutionally guaranteed protections of American citizens to foreigners who have sworn allegance to an international network of terrorists. Al Qaeda is not a nation. They are a terrorist organization that does not adhere to any recognized rules of war. There can be no reciprocal arrangement with them so they are free to behead captured westerners at will without due process.

This ruling plays into the hands of our enemies and does nothing to protect Americans while raising the cost of the War. The U.S. Supreme Court hurt America with this ruling. Congress should act immediately to limit the impact and to give our Commander in Chief unambiguous authority to do what is required to win the War on Terrorism.

DR–you are simply wrong. The Geneva Convention provisions you are referring to which go beyond humane treatment apply only to uniformed soldiers of a sovereign state who observe the laws of warfare, i.e. they don’t target civilians, behead local villagers and captives or situate their RPG launchers amongst children.

As for some of the Gitmo detainees you mention, you’re reading the lawyers’ characterizations, fed to the media and reported without further question. The lawyers are flat out lying about these people. If you don’t think so, I give you Abdullah Al-Ajmi. His lawyer said he loves America. He is but one of many examples.

He got a fair administrative hearing, and a deal was negotiated with his government. Kuwait said, we’ll ensure that he doesn’t get in trouble. Now, citizens of Kuwait are saying, keep Gitmo open. We don’t want these people back. Britain is having the same debate. Suddenly Gitmo is looking good to them, when the alternative is having these militants among them.

I fear for my country. The public has no idea what it has just lost. Who will take the heat in the next 9/11-type commission? These lawyers will be running in the opposite direction.

For the first time in my life I feel helpless. What do we do? All I will do is pray for the brave men and women serving our country and for the Angels in heaven victims of the (monsters,demons,terrorist, liberls). God Bless every patriot on this page.

I blame a large number of doltish (anti?) Americans that are nothing more than enablers of these five Justices. Enablers obviously so emersed in Bush Derangement Syndrome that they will contort themselves like pretzels to find a way to defend anything the judiciary does that weakens “Bush’s war” on terrorism.

And I blame an out-of-control, biased demedia for creating this grotesque monster brainwashed to the extent of trading its
liberty for an ill-chosen vendetta.

The Geneva Convention gives more than just humane treatment – it provides for due process – even the Nazis received it. The need for mirandizing prisoners would be handled by the Geneva Code – there is no requirement. As for troops gathering evidence in the middle of a battle, the fact that most of the Gitmo detainees came from Pakistan – not in a combat situation – means that was not an issue. Also, it is necessary to gather evidence against people whether it is under the Geneva Convention, or under US Law – evidence is evidence. Most of this is gathered offline – not in the heat of combat. That would be information gathered by the CIA and other related agencies.

Even if you discount the Seton Hall study, then look at case of Badr Zaman Badr and his brother who were imprisoned for 3 years on the basis of being turned in for writing jokes. Or the case of Murat Kurnaz – who had no evidence against him yet was not allowed to see what the state had against him. And when his file was declassified, the state turned out to have only one piece of information on him – that he had a friend who was a suicide bomber. Just one problem with that – the guy wasn’t a suicide bomber and was alive and well.

But my point is simply this: Bush created this situation by giving them no legal status that permitted real due process. As a result, the Supreme Court ruled that they needed to have some form of due process in order to just separate the real terrorists from those falsely accused. I really don’t understand why people are opposed to having some form of due process – someone like Abdullah Al-Ajmi would have been found guilty in any court.

I am dumbfounded by this decision. Literally, I’m struck dumb. My head is exploding over the insanity of this ruling; and, at the moment, I can’t capture anything near coherence.

Can the Supreme Court understand the level of inhumanity to which it has sunk? They may as well have spit in the faces of our brave soldiers. Where is the compassion here among the self-righteous, self-appointed arbiters of morality? The irony alone is enough to knock your socks off.

Our country is done for, whether Obama is elected or not. I’m convinced of that, and this is just another example of why. The difference here is that this decision is no mere stumble closer to the abyss. This decision catapults the anti-American agenda so far forward that I now believe I will be here to witness the fall of the land of The Greatest Generation, their ancestors and their progeny.

There is only one solution: Political correctness aside, it’s time for another Revolution. Instead of winning freedom from English tyranny, this time we’d be fighting to sever the bonds of liberal tyranny. Or, if you want to look at it another way, call it Civil War II. Let those of us who wish to live according to the Constitution and the Commandments establish our own territory.

No matter how you want to look at it, this is the only solution. Realistically, legislaton and education will not be enough to restore what we’ve lost in America. The Liberals and their lieutenants, the NEA (both of them by the way), have seen to it that our sacred land is overwhelmingly inhabited by a bunch of numbskulls, the kind which are easily duped. It’s over for us.

I witnessed on my way to work at the Giuliani administration and survived 9/11, and am so disgusted with our government’s treatment of enemy combatants over the US citizenry. We have allowed liberals into the corridor of power to uproot common sense for some outlandish fool’s wisdom. I spit on the Supreme Court 5 and I spit on the entire Congress for not having the backbone to tell these miscreants in black to butt out of this war.

As a 9/11 family member it saddens me to think that we have more empathy for terrorists-our enemies(who are not entitled to due process)then for those American civilians who lost their lives without as much as an afterthought from the lawyers who merrily cheer for the opposition. Truly our Supreme Court Justices have swayed in favor of political decision making. Our constitution is not open to interpretation, rather it should be used as the perscription to ensure that Americans are not stripped of their rights in favor of providing enemy combatants provisions which they clearly do not merit.
We will all have to safeguard against this decision and suffer the consequences because of the actions put forth today by the Supreme Court.

Terrorism is an act of illegal war and even legal combatants are not tried in criminal courts. These terrorists were picked up ON THE BATTLEFIELD. No county in history has ever done this. Many Americans will die because of this. From now on, take no prisoners.

Detainee Treatment Act of 2005 was enacted by Congress to supply the administrative process that POW’s got under Geneva Conventions but which unlawful enemy combatants do not get–as they do not recognize the rules of war, do not wear a uniform, target civilians and engage in atrocities. Under Geneva Conventions, they are only entitled to humane treatment. They got that in spades.

BTW, the Seton Hall survey, aka the Wikipedia study, is based on unclassified material and draws conclusions based on claims made by the detainees themselves, i.e. that they are “innocent victims swept up in fog of war” or captured by “bounty hunters.” Tell that to the families of the 7 Muslim security forces who were blown up by Abdullah Al-Ajmi, the Kuwaiti former detainee released in 2005. His lawyers said he was captured by bounty hunters. They have made the same claims about the dozens of other released detainees who have returned to the fight. All those mistakenly swept up were released YEARS AGO. The 270 at Gitmo today are hard core jihadis.

I would respectfully ask, how do our troops fight a war against terrorists in which they have to mirandize prisoners, gather evidence in the midst of the fight, and leave their comrades to go testify in legal proceedings? This is insanity.

Johnson v. Eisentrager ruled that the US Courts had no jurisdiction over the Germans. But the Germans still had due process in the form of the Geneva Convention. The Bush administration placed these enemy combatants in a legal dead zone where the Geneva Convention didn’t apply and the US laws/courts didn’t apply. As a result, the Courts had to find some way to deal with them. This is what the ruling was really about. Note that Justice Souter, in a concurring opinion, stressed the fact that the prisoners involved have been imprisoned for as much as six years without any form of due process.

[Editor — They did not have “due process in the form of the Geneva Convention”; that is a canard. The convention that addressed unlawful combatants was written in 1949. All but two of them were executed in 1942, including one American citizen and five Germans.]

Shame on the justices that voted for this. Shame on them for allowing the release of terrorists that not only took lives during their reckless martyring of innocent Americans but soldiers who risk their lives to capture them.

It’s a shame that it’s going to take another 9/11 for these wackjob, left-wing, political hacks with black robes to figure out who these terrorists really are.

Isn’t it amazing that no other president in the history of this country has allowed such a decision as the one being passed now? All of the sudden 200+ years of law is now unconstitutional? What are these idiots thinking?

This is one of the worst decisions this Court has rendered. They have thrown precedent to the wind (Johnson v. Eisentrager, 1950). Will out troops now have to read captured enemy combatants their “rights” under Miranda. Will they have to seal the site of the capture with yellow crime scene tape and will a CSI unit be called in to look for carpet fibers and DNA? Some will say this is a rebuke against Bush, but I see it as defeat for the United States. All I can say is God help us.

In my opinion the Bush administration left the Court no choice. In ruling the prisoners enemy combatants, and denying them access to a true court, the Supreme Court had no choice. Had the Bush administration laid out a real court system that upheld portions of Habeas – unlike the Combatant Status Review Tribunal (CSRT) that didn’t give any sense of due process for the past 3-6 years – the Court would not have been left with the question of “what the hell do we do with these people?”

As an example, the fact that the detainees were neither allowed to have any kind of lawyer present other than a military official, and that they were not allowed to see the evidence against them made it impossible for them to possibly defend themselves.

Had Bush put together a more reasonable military tribunal for the detainees, this would never have had to go to the Supreme Court. Justice Kennedy’s statement for the majority clearly was about the flimsy nature of these hearing and that they did not met even the weakest definition of Habeas.

Given the Seton Hall study on the prisoners – which showed that most of the prisoners came from Pakistan most likely as a result of bounties – not from combat as the Bush administration has stated numerous times, I think the Supreme Court was giving the only ruling it could.

Having lived in NYC during 9/11 and lost friends, I want these detainees prosecuted. I also want to make sure that we are allowing some form of due process to make sure we are not detaining the wrong people for no reason.

Editor — You must be a member of the Guantanamo Bay Bar Association’s official propaganda wing. The enemy does not get to see America’s secrets. Oh BTW, read the decision today; the SCOTUS agrees with me about that. And the Seton Hall study is nearly all a flat-out lie. Read the CSRTs and you’ll find that very few of the detainees were “sold for bounty.” I’ll go further, and they are free to sue me (discovery will be a b****), the study is a deliberate set of lies.